No Triggering Event, No Duty to Preserve

In an employment dispute, the Plaintiff claimed the Defendants had a duty to preserve electronically stored information at the beginning of an HR investigation after she sent a letter outlying concerns with her manager. The Plaintiff was ultimately put on a performance review and terminated. Viramontes v. United States Bancorp, 2011 U.S. Dist. LEXIS 7850, at *6 (N.D. Ill. Jan. 27, 2011).

The Defendants only retained email messages for a 90 day period, after which the messages were destroyed. Viramontes, at *5. The Plaintiffs learned of the Defendants’ retention policy after proposing a protocol for electronically stored information. Viramontes, at *4-5.

The Plaintiffs sought an adverse inference jury instruction that the destroyed email messages contained discriminatory and retaliatory statements. Viramontes, at *6. Moreover, the Plaintiff also asked the Defendants be prevented from arguing the lack of email correspondence showed no discriminatory statements were made and that the Plaintiff was not subject to discrimination because of the lack of email evidence. Viramontes, at *6-7

The Court’s analysis was whether the HR complaint was a “triggering event” for the Defendant to issue a litigation hold.

The Rules of Spoliation

Spoliation is defined when a party “destroys evidence relevant to an issue in the case.” Viramontes, at *7. The Duty to Preserve is triggered when a party “knew, or should have known, that litigation was imminent.” Id.The moving party must also show the information was destroyed in “bad faith,” which means it was destroyed with the “purpose of hiding adverse information.” Id.

“If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or harmless.”

Viramontes, at *8.

The Court has in its inherent authority the power to impose sanctions, in addition to Federal Rule of Civil Procedure Rule 37. Viramontes, at *8.

The “Safe Harbor” provision of Federal Rule of Civil Procedure Rule 37(e) limits sanctions, unless there are “exceptional circumstances,” when electronically stored information is lost “due to the routine operation of a party’s computer system if the operation was in good faith.” Viramontes, at *8.

The Court’s Reasoning

The Court found that the Plaintiff’s HR letter was not a triggering event for the Defendants’ Duty to Preserve, because the letter was a grievance letter and not written to threaten litigation. Viramontes, at *8-9. Since litigation was not “imminent or reasonably foreseeable,” the Defendants were not under a duty to preserve and suspend their data destruction policies. Viramontes, at *9.

Bow Tie Thoughts

Battles over spoliation and whether there has been a trigger event are fact specific. In this case, litigation was not “imminent or reasonably foreseeable.” There are other cases when an HR complaint could be a triggering event.

The Courts will engage in fact specific analysis over whether the duty to preserve has triggered. Whether there is spoliation is not a strict liability offense that requires merely a claim of destroyed data, but factually analysis on whether litigation was “imminent or reasonably foreseeable.”

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.

Though the court found that the first tier of the spoliation rule was not met, it would appear that the second tier would have been difficult to prove. “The moving party must also show the information was destroyed in “bad faith,” which means it was destroyed with the “purpose of hiding adverse information.” Absent access to those emails from a different source (someone cc’d, bcc’d) or a third party having direct conversations about the emails, proving that the emails had adverse information would seem difficult.

This case brings up an important point for government litigators. Given the number of claim requirements that must be met before a person can press their claim, there certainly is an argument that the mere filing of a claim, as a general proposition, does not trigger a litigation hold. It would depend on the circumstances of each case and especially how many of a given type of claim go on to litigation after denial.